EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0819314
Customs Act 1901
Background
Part XVA of the Customs Act 1901 (the Act) sets out a scheme under which Tariff Concession Orders (TCOs) may be made by the Chief Executive Officer of Customs (the CEO). A lower rate of customs duty applies to goods that are the subject of a TCO.
Under section 269F of the Act, a person may apply to the CEO for a TCO in respect of goods. If the CEO is satisfied that the application is not in respect of goods specified in section 269SJ of the Act, which sets out those goods that cannot be subject to a TCO, the CEO must decide whether the application meets the core criteria.
Section 269C of the Act provides that a TCO application meets the core criteria if, on the day on which the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Section 269B of the Act provides that ‘goods produced in Australia’ has the meaning given by section 269D, ‘ordinary course of business’ has the meaning given by section 269E and ‘substitutable goods’ in respect of goods the subject of a TCO application, means goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application can be put.
Subsection 269P(3) of the Act provides that if the CEO is satisfied that a TCO application meets the core criteria, the CEO must make a written order (a TCO) declaring that the goods the subject of the TCO application are goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 (the Tariff) specified in the order applies.
Cement Australia Holding Pty Ltd applied for a TCO in respect of certain drum waste recycling system on 16 July 2008.
Instrument
TCO No 0819314 was made on 10 October 2008. It declares that those certain drum waste recycling system are goods to which item 50 of Schedule 4 to the Tariff applies since the CEO was satisfied that no substitutable goods were produced in Australia. The general rate of duty on these goods is 5%. The rate of duty for the goods subject to the TCO is free.
Consultation
Subsection 269K(1) of the Act provides in part that as soon as practicable after accepting a TCO application as a valid application, the CEO must publish a notice in the Gazette which includes an invitation to any person who considers that there are reasons why the TCO should not be made to lodge a submission with the CEO. The CEO did not receive any submissions in response to this invitation.
Commencement
Subsection 269S(1) relevantly provides that a TCO is to be taken to have come into force on the day on which the application for the TCO was lodged. TCO No. 0819314 is taken to have come into force on 16 July 2008.
The TCO does not affect the rights of a person (other than the Commonwealth) as at the date of registration so as to disadvantage that person or impose liabilities on a person (other than the Commonwealth) in respect of anything done or omitted to be done before the date of registration. The rights of importers will be beneficially affected. Under paragraph 126(1)(r) of the Regulations, importers of such goods will be able to apply for a refund of duty on goods imported since the day on which the TCO is taken to have come into force. The TCO does not impose any liabilities on any person.
Overview
The Tariff Concession Instrument No. 0819314, enacted in 2008, serves to facilitate tariff concessions for specific goods under the Customs Act 1901. This instrument was introduced to address the gap in tariff rates for imported goods, particularly those that do not have substitutable Australian-produced counterparts, thus ensuring fair competition and accessibility within the Australian market. The instrument was enacted by the Chief Executive Officer of Customs, in accordance with the provisions outlined in the Customs Act 1901. The policy objective of this instrument is to streamline the tariff concession process, ensuring that importers are not disadvantaged and can benefit from lower customs duties on specific goods, thereby promoting economic efficiency and market fairness.
The instrument came into effect on the day the application was lodged, 16 July 2008, and it grants tariff concessions on certain drum waste recycling systems, reducing the duty rate from the general 5% to free. This measure was taken after considering that no substitutable goods were produced in Australia at the time of the application, as required by the Act. No submissions opposing the tariff concession were received, indicating broad acceptance of the measure. The instrument ensures that the rights of importers are positively affected and that no liabilities are imposed on any person as a result of its enactment.
Scope and Application
The Customs Act 1901, specifically Part XVA, facilitates the issuance of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO). These orders apply to goods specified in the application, provided the goods are not listed in section 269SJ of the Act, which includes goods that cannot be subject to a TCO. An application for a TCO must meet the core criteria stipulated in section 269C, which requires that no substitutable goods are produced in Australia in the ordinary course of business on the date the application was lodged. The TCO applies to any entity or individual seeking tariff concessions for specific goods, and its geographic reach is limited to Australia as it pertains to the production and importation of goods within the country. Exemptions or exclusions from the TCO are those goods specified in section 269SJ of the Act. The Act also allows for the extension or restriction of its application through subordinate instruments, although no such instruments are mentioned in this context. The rights of importers are positively affected as they can apply for a refund of duty on goods imported since the TCO is deemed to have come into force on the date the application was lodged, as per paragraph 126(1)(r) of the Regulations.
Key Provisions
The primary operative sections of the Tariff Concession Instrument No. 0819314 under the Customs Act 1901 (section 269F) involve the application for Tariff Concession Orders (TCOs) by interested parties and the subsequent decision-making process by the Chief Executive Officer of Customs (CEO). Section 269F allows a person to apply for a TCO concerning specific goods, provided those goods are not listed in section 269SJ, which excludes certain goods from being subject to a TCO. The CEO must then assess the application against the core criteria, which are detailed in sections 269C, 269B, and 269D. Specifically, section 269C requires that on the day the application is lodged, no substitutable goods were produced in Australia in the ordinary course of business. If the CEO is satisfied that the application meets these criteria, they must make a written order declaring that the goods in question are subject to a specified item in Schedule 4 to the Customs Tariff Act 1995.
The obligations and requirements imposed by this Act on the parties and entities it governs are primarily centred around the application and approval process for TCOs. The applicant must ensure that their application is made in accordance with section 269F and that it pertains to goods not excluded under section 269SJ. Additionally, the CEO has the responsibility to review the application against the core criteria outlined in sections 269C, 269B, and 269D. If the CEO determines that the application meets these criteria, they must proceed to make a written TCO. Section 269K(1) further stipulates that the CEO must publish a notice in the Gazette inviting any interested parties to submit their views on the proposed TCO, although no submissions were received in this case.
The Customs Act 1901 and the associated regulations impose specific consequences for breaches of the provisions. However, in the context of this particular TCO, the explanatory statement does not detail any offences, penalties, or civil/criminal consequences for breach. It is essential for the parties involved to adhere to the requirements set out in the Act to avoid any potential legal repercussions. The TCO itself, however, does not impose any liabilities on any person and does not affect the rights of any person other than the Commonwealth in a detrimental manner.